Syria Insta-Symposium: Does the U.N. Charter Matter to the U.S. Senate’s Deliberations on the Use of Force? Nope

by Julian Ku

The legality under international law seemed to play an important role in the U.K. Parliament’s deliberations over whether or not to support a strike on Syria. The UK government issued an (admittedly bare bones) legal opinion which advanced a version of humanitarian intervention. So now that the U.S. Congress has taken up the same question, how important is the U.N. Charter’s limitations on the use of force under Article 2 to the Congress’ deliberations?

As I suggested earlier, the short answer is that the UN Charter’s Article 2 will not be a serious impediment to the U.S. Congress’ decision whether to authorize the use of force. The Obama Administration, as far as I can tell, has not even bothered to offer a statement as to why such a strike would be legal under international law, much less a full-blown legal opinion. And if today’s U.S. Senate Foreign Relations Committee hearings are any indication, there is zero interest among even skeptical Senators in discussing the UN Charter.

Based on my skim of the transcript, this is the sole serious discussion of the Charter, raised by Sen. Udall of New Mexico:

We are on shaky international legal foundations with this potential strike, and we need to know whether we exhausted all diplomatic and economic sanction options to affect Syria’s behavior. We need to increase our attention on the source of Assad’s ability to continue to ruthlessly kill his own people, and that is support from nations including Russia and China, who are cynically trying to hold the moral high ground. Assad would not be able to maintain his grip on power if he were not being supported from outside. The full force of international outrage should come down on those nations that are refusing to allow the U.N. to act and find a solution.

Here is Secretary of State Kerry’s response to Sen. Udall’s broad point:

SEC. KERRY: So we have no illusions. Yes, is the U.N. Security Council having difficulties at this moment performing its functions? Yes. Does that mean the United States of America and the rest of the world that thinks we ought to act should shrink from it? No.

Well, that was easy. Indeed, the only reference to “violating” international law in the transcript is to Syria’s violations, and not to any potential U.S. violation. Like the President, the Senators seem comfortable going forward without a U.N. Security Council resolution, even if that is (in the opinion of most scholars) a clear violation of the Charter. Unlike the UK government, none of the decisionmakers on this side of the pond seem to care. Does this mean we don’t need to pay attention to the Charter anymore? It sure seems like it.

12 Responses

The simple fact is that there is no International Law, only power. A nation which possesses overwhelming power is the Law – and woe betide those who have the temerity to believe otherwise.
And let’s face it, when al-Qaeda and the USA are on the same side, who can resist?

9.04.2013
at 5:16 am EST A Lesser Breed without the Law

There is a false assumption that the U.N. Charter would be violated in the special context of ongoing consent from the legitimate representative of the Syrian people, whether or not a U.S. objective would ve to support the SNC.
Additionally, nothing in the text of the Charter prohibits “every,” “all” or “any use of force” and there is also the special context in this instance regarding an ongoing belligerency.

9.04.2013
at 11:09 am EST Jordan

Dear professor Paust,
==Additionally, nothing in the text of the Charter prohibits “every,” “all” or “any use of force” and there is also the special context in this instance regarding an ongoing belligerency.==
The travaux préparatoires say the following about article 2(4): “The Delegate of Brazil said that the change, made in the text to incorporate the Australian amendment had not removed the element of ambiguity about which he had previously spoken, and he suggested that, apart from the use of legitimate self-defense, the text as it stood at present might well be interpreted as authorizing the use of force unilaterally by a state, claiming that such action was in accordance with the purposes of the Organization.
…
The Delegate of Norway said that the Committee should reconsider the present language which did not seem to reflect satisfactorily its intentions, and thought that in any case it should be made very clear in the Report to the Commission that this paragraph 4 did not contemplate any use of force, outside of action by the Organization, going-beyond individual or collective self-defense.
…
The Delegate of the United States made it clear that the intention of the authors of the original text was to state in the broadest terms an absolute all-inclusive, prohibition; the phrase ‘or in any other manner’ was designed to insure that there should be no loopholes.”, 6 UNCIO 334-335

interesting, but incomplete. That’s probably why the Vienna Convention instructs us to use the text actually adopted in addition to the object(s) and purpose(s) of a treaty. Note: a response to a post at Oxford Univ. Press blog:
Professor Anthony D’Amato says: September 2, 2013 at 9:19 pm Professor Moore’s analysis of the UN Charter is compelling, but she moves too quickly over Article 2 Para. 4. A unilateral missile strike against Syria in retaliation for its use of chemical weapons against its own civilians, is not a use of force against the territorial integrity or political independence of Syria, in the terms of Article 2(4).Back when I was in law school, I wrote a diplomatic history of the terminology of Art 2(4), for the terms have their own meaning in international discourse that is not necessarily their everyday ordinary meaning. As far as I know, my essay has not been attacked or superseded. You can find it in INTERNATIONAL LAW: PROCESS AND PROSPECT, chap. 3 (2d ed.)

9.04.2013
at 3:34 pm EST Jordan

p.s. Tony mentions the view of the delegate from Australia: “The application of this principle should insure that no question relating to a change of frontiers or an abrogation of a state’s independence could be decided other than by peaceful negotiations” — that this limited the reach of the actual language used in 2(4) to change of frontiers and abrogation of a state’s independence.

9.04.2013
at 4:03 pm EST Jordan

Dear professor Paust,

Professor D’Amato is a minority. Dinstein is not convinced by his argument:

“If the injunction against recourse to force in international relations were to be confined to specific situations affecting only the territorial integrity and the political independence of States, a legion of loopholes would inevitably be left open…..The correct interpretation of Article 2(4), given the other stipulations cited as a background, is that any use of inter-State force by Member States for whatever reason is banned, unless explicitly allowed by the Charter.” Dinstein, Y. (2011). War, aggression and self-defence. p. 90-91.

Chesterman is also unconvinced by professor D’Amato and similar arguments:

“Such an interpretation runs contrary to numerous statements by the General Assembly and the ICJ concerning the meaning of non-intervention, and is inconsistent with the practice of the Security Council, which has on numerous occasions condemned and declared illegal the unauthorized use of force notwithstanding its temporary nature.”, Chesterman, S. (2001). Just war or just peace? Humanitarian intervention and international law. p. 51-52

Anyone can read Article 2(4) hurriedly and impressionistically, but we scholars of international law are committed to a more careful and precise examination of the intent of the drafters in light of the diplomatic context they were embedded in. My essay on the terminology of Art 2(4) is being typed for submission to SSRN, and I hope you will take a look at it. Jordan Paust highlights the Australian interpretation without adding that it was Australia’s delegation that led the way to the drafting of 2(4). In my essay, I refer to “territorial integrity” and “political independence” in various treaties which constitute the diplomatic history of these terms and which you should consult before reaching any conclusions, including Treaty of Paris (1856), Treaty of Christiania (1907), Havana Treaty (1903), US-Panama Treaty (1903), Lithuania-USSR Treaty (1926), League of Nations Covenant Article 10, Afghanistan-USSR Treaty (1931), France-USSR Treaty (1932), Finland-USSR Treaty (1932), Latvia-USSR Treaty (1932), Estonia-USSR Treaty (1932), Havana Protocol (1940), and Act of Chapultepec (1945). Each treaty by its language and definitions adds to the core meaning of the terms of 2(4). THe delegates at San Francisco in 1945 were not using Webster’s Unabridged (English!) dictionary; they were continuing the common diplomatic meaning of the terminology, much the same as customary international law continues the lingua franca record of the resolution of past international conflicts.

Response…Tony D’Amato’s post, seems to me, adds up to the proposition that we can’t take the terms of the law out of their context. That would reasonably include their historical context. Considering that context, I just don’t see how the Charter members could have countenanced the idea that the great powers could take it upon themselves to 1] determine if international law had been violated and 2] use military force in response to uphold, in some sense, that law. This is what the United States is essentially proposing as a legal justification for attacking Syria. The same justification would have been applicable to Hitler’s ‘defense’ of Danzig.
The system includes veto power by the 5 great powers. The US uses its veto all the time. It is no argument to say that if another country uses its veto, that the US can ignore it if, in the sole opinion of the US, international law justifies military intervention by the US. It is not even an argument to say that the US can use military action when all the other powers say it can, when one of the 5 powers has issued a veto. A veto is a veto.
Talk about US credibility is rather facetious. The US will lose more credibility if it violates international law using a false international law justification, based upon facts which are still not verified, and acts clearly in a self-interested manner in pursuit of its own policies, than if it adheres to international law and waits for a clear evidentiary determination in regard to the use of chemical weapons.

9.04.2013
at 7:25 pm EST yan

Yan, as a participant at times, thank you for participating in the debate (I don’t recall you doing so before, but apologize if that is not the case). Of course, Tony’s point is that article 2(4) may not be violated in the first place. If use of force would only be justifiable under a S.C. authorization, your points are noteworthy. Yet, there are other things to consider: permissibility because use of force is not proscribed by the text of article 2(4) and purposes of the Charter, article 51 collective self-defense (e.g., with Turkey or the SNC), consent in advance by the SNC whether or not the U.S. chooses to act in support of the SNC, etc.
I think that the debate is very much alive and that Tony has provide some important things to consider.

9.04.2013
at 9:54 pm EST Jordan

Jordan, thanks for the welcome. My argument was mostly in response to new legal theories that seem to be popping up out of the woodwork for the purpose of justifying military intervention at this time, and which can, I think, be described and summarized by the general contours I mentioned. That doesn’t mean there are not other theories which could legally justify military action; but, I am not aware of any such theories. Furthermore, I think it should be hornbook international law that a state that makes its own determinations about whether international law has been violated, and which subsequently unilaterally acts on such a determination, fits into the category of being a self-interested actor which is using a claimed violation of international law as a shield to justify pursuing its interests using military force. I also think that perhaps the primary raison d’etre of international law is to stymie the ability of such states to do that kind of thing. Thus, I think that any theory which, in the moment, is created ad hoc in order to justify such an action of such a state ought to be viewed with the greatest suspicion.

9.05.2013
at 1:56 pm EST yan

Does this mean we don’t need to pay attention to the Charter anymore?
Anymore? I wasn’t aware we’d ever really begun to.

9.05.2013
at 3:52 pm EST M. Gross

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